August 10, 2000

She Was Just Someone

Twelve years ago last Monday, in San Antonio, Texas, a 24-year-old air force technician named Kelly Donovan
was taking a walk when two men abducted her. One of the men, Oliver Cruz, raped the young woman then stabbed her to
death. Both men were soon arrested. Cruz was sentenced to be executed by lethal injection; his accomplice, Jerry
Kemplin, testified against him in exchange for a 65-year prison term. There was no doubt of Cruz's guilt, and neither
he nor his lawyers disputed it. He confessed to the crime, saying of the victim: "She was just someone. I don't
expect nobody to have pity on me." He also expressed remorse: "I made a mistake. I don't blame nobody.
There's nothing I could say or do to bring the person back. There's nothing I could do or say to her family about how
sorry I am."

Cruz was executed by lethal injection at 6 p.m. Wednesday. The U.S. Supreme Court had voted 6-3 to deny his
application for a reprieve. The state Board of Pardons had refused, on an 18-0 vote, to recommend a stay. Only an
intervention by Texas Governor George W. Bush could have prevented Wednesday's execution, and the Governor did not
act.

Why might he have? Why is this execution of any particular interest? Because Mr. Cruz was very dim-witted. A
review of his school records (Cruz was 21 at the time of the murder) showed that he was classified "educable
mentally retarded." He flunked the seventh grade three times and was barely literate. IQ tests he took while on
death row yielded scores in the low sixties to high seventies. Many oppose the execution of such prisoners, arguing
that this level of retardation amounts to a diminution of responsibility. In fact, the Texas State Senate, in its
last session, passed a bill to prohibit the execution of anyone whose IQ is below 65. The bill did not get past the
House, but will come up again next year. Twelve of the 38 death-penalty states actually have such laws on the books,
with IQ 70 being the most popular threshold for defining "retarded."

It seems to me that these laws are misguided. Let us glance for a moment at the scientific aspect of the
matter. To get anywhere at all, we need a working definition of "retardation." IQ 65? IQ 70? It is a
curious thing that some of those most intent on establishing a strict IQ test for execution are the same people who,
in other contexts, are keen to assure us that IQ tests do not measure anything meaningful. Down at this lower end of
the bell curve these skeptics do, in fact, have a point. A psychometrist, even a hard-line IQ supporter, will tell
you that the difference between a tested IQ of 65 and one of 70 is not reliable. In fact, a 1989 report surfaced a
day or two before Mr. Cruz's execution showing his IQ as 83; and it is obvious — even, probably, to
someone as slow on the uptake as Mr. Cruz — that if a death-row inmate is intent on prolonging his own
life, he had better not do too well on any IQ tests the authorities administer to him. In short, we are basing life
and death decisions here on some very dicey numbers. Suppose we pass legislation setting the bar at IQ 70 (as many
states in fact have). Suppose we now have a death-row inmate who tests at 71. Do we bring out the gurney? Give the
guy another shot at the test? Or what?

Lurking behind all this is the dreaded human-biodiversity issue, which is getting harder and harder to avoid
in public-policy discussion, for all that so many people still seem determined to avoid it. As was documented in
The Bell Curve, American blacks test with a mean IQ some fifteen points below American whites (who, in turn,
test with a mean six points below American orientals). An IQ "bar" is therefore, ceteris paribus,
going to let more black criminals off the hook than white ones (and more white ones than yellow ones). Since most
people who end up on Death Row are below average in intelligence to begin with, this effect will be quite marked. We
are dealing with a pool of people concentrated near the "bar," with disproportionately more blacks than
whites falling below it. Is this, or is it not, "racial injustice"? You tell me.

Mental retardation should not be confused with insanity. It is a long-standing principle in Anglo-Saxon
law — the "M'Naghten rule" — that a person lacking sufficient mental capacity to
understand what he was doing, and that it was wrong, cannot be held criminally responsible. Nobody has claimed that
Mr. Cruz did not understand what he was doing when he murdered Ms. Donovan. Can severe dim-wittedness absolve one of
responsibility for an act? Or of enough responsibility to make the difference between life in jail and execution?
However low Mr. Cruz's IQ scores, he made a living for several years as an odd-job man and carny barker. He
functioned in the world. His own words — "I take full responsibility" — suggest an
understanding of basic moral distinctions. Nor can Mr. Cruz's case be compared with that of Ricky Ray Rector, the
Arkansas man whose execution in January 1992 was overseen by Governor Bill Clinton. Presidential candidate Clinton
had taken a break from campaigning and returned to Arkansas just for that purpose. Rector was in much worse mental
shape than Oliver Cruz, having blown away part of his brain in a suicide attempt at the time of his arrest. He was so
far removed from things that he put aside the dessert of his last meal for later.

Plainly we need to take care when people with dull or damaged brains enter the criminal-justice system. Their
words should be given less weight in trial proceedings, and physical evidence correspondingly more. Juries need to be
instructed to take into account mental retardation when deciding verdicts and sentences, in those jurisdictions where
it is a mitigating factor. (There was some dispute about whether this was properly done in Mr. Cruz's case.) Having
taken all such precautions, though, I cannot see why a person who has functioned in the world — earned a
living, learned to drive, rented a room — should be spared any penalty that the law considers proper.

There is, after all, Kelly Donovan to be thought of. She died, in agony and terror, without benefit
of scientific or jurisprudential debate, or of a 12-year pause while learned scholars deliberated on her destiny.
"She was just someone …" and now she is no-one, and nowhere, forgotten by all but the few who
loved her. In our modern obsession with procedure and technique, we forget that the criminal-justice system is not
merely a piece of cold machinery for processing malefactors. It is also the stage on which a public drama is played
out: the drama of redress, of delegated communal retribution. Oliver Cruz took the life of Kelly Donovan, knowing
what he was doing. He has paid with his own life. We do not exult or gloat, but we can, without guilt or shame, feel
a grim satisfaction in wrong redressed, in justice accomplished.